Health Ombudsman v Roza[2022] QCAT 420

REASONS FOR DECISION

1. [1]
   This is a disciplinary matter involving a theft by the respondent on 18 November 2020 of $580 from the wallet of a deceased patient while the respondent was present at the patient’s house in his role as a paramedic.
2. [2]
   The jurisdiction is established because the respondent was a registered health practitioner at all relevant times, but he is no longer registered having failed to renew his registration on 1 January 2022, and he has indicated today he does not intend to seek registration. Section 94(1)(b) of the Health Ombudsman Act 2013 provides that the Tribunal has jurisdiction to hear a matter concerning a registered health practitioner referred to it by the applicant, and pursuant to the Queensland Civil and Administrative Tribunal Act 2009 (QCAT Act), the Tribunal deals and decides this matter in its original jurisdiction. The QCAT Act also provides that a complaint may be made and dealt with by the Tribunal in relation to the person’s behaviour while the person was a registered health practitioner as if the person was still a registered health practitioner.

The facts

3. [3]
   The parties have jointly signed a statement of agreed facts, and there are no factual matters in dispute. The respondent has not filed written submissions but has appeared here today. On 29 January 2021, the respondent pleaded guilty and was convicted of one count of stealing. The respondent was ordered to undergo 18 months’ probation conditioned that he submits to such medical, psychiatric and all psychological assessment and treatment as directed by an authorised Corrective Services officer. No conviction was recorded.

The respondent’s history

4. [4]
   The respondent is aged 64, having been born on 17 April 1958. He has no previous criminal convictions. He was placed on a conditional registration on 19 January 2021 and, as I said, this year he failed to renew his registration.

The characterisation of the conduct

5. [5]
   The respondent’s conduct was serious. It occurred in the direct course of his employment as a paramedic. He breached the trust of his employer and the deceased patient and his vulnerable widow. The theft was brazen. Pursuant to section 41 of the Health Practitioner Regulation National Law (Queensland) (National Law), the Paramedic Board of Australia Code of Conduct for Registered Health Practitioners (the Code) is admissible in disciplinary proceedings as evidence of what constitutes appropriate professional conduct or practice for medical practitioners. At section 1.1 the Code states that “practitioners must always act in accordance with the law”.
6. [6]
   The Code further states that “practitioners must be ethical and trustworthy”. Patients or clients trust practitioners because they believe that practitioners will not take advantage of them and will display qualities such as integrity, truthfulness, dependability and compassion. The Code further states that a good partnership between the practitioner and patient involves recognising there is a power imbalance in the relationship and not exploiting the patients financially.
7. [7]
   The conduct here is a substantial departure from the standard of conduct required of a practitioner and amounts to professional misconduct. Further, the respondent has, in the past, had other allegations substantiated during his long employment. Both involved falsifying information in Queensland Ambulance Registers (QAS), and other allegations in respect of keeping records.

Insight and remorse

8. [8]
   The respondent initially failed to co-operate with the police investigation, but since then has sought psychological treatment. He pleaded guilty to the offence. He made full restitution. A psychologist’s report by Dr Hatzipetrou indicated that he had expressed remorse to the doctor. He has co-operated with these proceedings, and has said he does not intend to return to the profession. Dr Hatzipetrou assessed the respondent as presenting with symptoms consistent with a major depressive disorder, post-traumatic stress disorder and unresolved bereavement. This related to his son’s suicide.
9. [9]
   Dr Hatzipetrou stated that the respondent’s mental health disorders were not directly causal in his offending, but rather contributed to impairments in his reasoning and a capacity to self-regulate. In those circumstances, while the respondent’s medical issues must be taken into account, they do not serve to extinguish the need for general deterrence or his moral culpability.

Other Consequences for the Respondent

10. [10]
    As has been noted earlier, the respondent’s employment was terminated immediately, and on 19 January 2021, conditions were placed on his registration. In addition, a submission was made at the hearing in the Magistrates Court that the respondent had been the subject of extensive shaming. The issue was mentioned in passing by the magistrate in his judgment.
11. [11]
    The purpose of disciplinary proceedings is to protect, not to punish. The main principle for administering the Health Ombudsman Act and the main consideration for the Tribunal is the health and safety of the public. The appropriate sanction is to be considered at the time of the hearing, not the date of the conduct. The applicant has referred the Tribunal to a number of cases which the applicant submits are comparable: Health Ombudsman v McCarthy,^[1] Health Ombudsman v Fletcher^[2]  and Nursing and Midwifery Board of Australia v Sotingco (Review and Regulation).^[3] The Tribunal has read all those cases.

Ancillary Matters

12. [12]
    The applicant seeks a non-publication order prohibiting publication identifying the deceased patient or his widow in order to protect the privacy of the widow where publication of her identity might prove upsetting to her. Such an order is in the interests of justice and does not breach the principles of open justice.

Orders

2. 1.Pursuant to section 107(2)(b)(iii) of the Health Ombudsman Act 2013 (Qld), the Tribunal decides that the respondent has behaved in a way that constitutes professional misconduct.

2. 2.Pursuant to section 107(3)(a) of the Health Ombudsman Act 2013 (Qld), the respondent is reprimanded.

2. 3.Pursuant to section 107(4)(a) of the Health Ombudsman Act 2013 (Qld), the respondent is disqualified from applying for registration as a registered health practitioner for a period of six months.

2. 4.Pursuant to section 62(2)(a)(ii) of the Health Ombudsman Act 2013 (Qld), the Tribunal sets aside the decision of the Health Ombudsman dated 19 January 2021, placing conditions upon the respondent’s registration.

2. 5.Pursuant to section 107(4)(b)(i) of the Health Ombudsman Act 2013 (Qld), the respondent is prohibited from providing any health service, until such time as the respondent obtains registration as a health practitioner under the Health Practitioner Regulation National Law (Queensland) or a corresponding law of another State or Territory of Australia.

2. 6.Each party to the proceeding is to bear their own costs for the proceeding

2. 7.Pursuant to section 66 of the Queensland Civil and Administrative Tribunal Act 2009, publication of:

1. (a)
   the contents of a document or other thing produced at the Tribunal;
2. (b)
   evidence given before the Tribunal; and
3. (c)
   any order made or reasons given by the Tribunal.

is prohibited to the extent that it could identify or lead to the identification of any patient of the respondents’ or any family member of that patient, save as is necessary for the Office of the Health Ombudsman to provide information to the Australian Health Practitioners Regulation Agency in the exercise of the Health Ombudsman’s functions under the Health Ombudsman Act 2013 (Qld).